Nature of the Case
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Facts
John Cheponis, former husband of D, was shot and beaten to death. D and Donald Ayers, whom she later married, were jointly indicted for murder and conspiracy. Both Ds testified at their joint trial. Ds were found guilty on both counts of the indictment. On appeal, the court set aside the convictions of murder, finding that a confession given by D had been obtained in violation of her Miranda rights and that the murder weapon had been discovered as a result of that illegally obtained confession. Donald Ayers was separately retried on the murder charge and was convicted. At D's second trial, the defense sought and procured suppression of the confession and the pistol. P at the pretrial hearing called Donald Ayers to testify. He refused to answer any questions, even after the court found that he lacked a valid fifth amendment claim and ordered him to testify. P then moved the court to admit into evidence under Rule 804(b)(1). The court found that Mr. Ayers was an 'unavailable' witness and that D, at the former proceeding, had had 'an opportunity and similar motive to develop his testimony by direct, cross, or redirect examination.' D objected. D was convicted and appealed.
D asserts that she lacked the requisite 'similar motive' to examine Mr. Ayers at the two trials and that therefore the Rule 804(b)(1) exception was not properly applicable.
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